At a comparative constitutional law conference -- but also on the basis of reflecting on the newspapers -- it's easy to pick up notes of concern about threats to liberal constitutionalism. The obvious candidates are Hungary, Poland, the United States (with the candidacy of Trump), and various other European nations where right-leaning populism seems increasingly, well, popular.

Often the programs of these movements are said to threaten the project of liberal constitutionalism. But, as my earlier post on the rule of law suggested, pinning down what the threats are is sometimes tricky.

Consider Donald Trump's mention of the possibility that U.S. libel law should be changed to make it easier for public figures to recover damages. Suppose that is given concrete form as advocacy for the rule that public figures can recover actual damages to their reputation for false statements about them when those statements were made negligently. (You can tweak the proposal in various ways, for example by saying that it should be more difficult to find negligence for amateur journalists/bloggers than for newspapers and other media that are more fully staffed, but the details rally don't matter for my argument.) Whatever the merits of that position as an interpretation of the First Amendment (which is to say, whatever its relation to existing Supreme Court doctrine). One might reasonably think that current US doctrine places too much weight on the ability of people to make irresponsible statements, too little on real harms to reputation. I confess it quite difficult to see in such a rule a deep threat to liberal constitutionalism. It is, after all, something rather like a rule followed in many clearly liberal polities (and there's no obvious reason rooted in a distinctive US culture to think that the proposed rule would do more damage to liberal constitutionalism in the United States than it does elsewhere).

Or, suppose a government were to adopt a statute allowing criminal punishment for disseminating statements (a) that the legislature determines have a reasonable probability of inducing some listeners to engage in serious criminal activity, or (b) that a fact-finder of the usual sort -- a jury, in the United States -- determines has a reasonable probability of, etc. (People familiar with US constitutional doctrine will understand that the first is a Gitlow-like statute, the second a Schenck-like statute, and that slightly different analytic issues arise in connection with each, but those differences too aren't relevant to this discussion.) Again putting aside current US constitutional interpretations, I find it difficult to conclude that such statutes are a deep threat to liberal constitutionalism. The current US doctrine requires the polity to put up with with the dissemination of statements posing a reasonably high risk of inducing others to commit serious crime, mostly because historical experience isn't encouraging. But maybe the current doctrine errs on the side of requiring too high a risk -- or so someone might reasonably think. (The current British prohibition on indirect encouragement of terrorism is, in my view, a statute of the sort I've described.)

The best defenses of the current US doctrines on these two topics rest on empirical judgments about how various institutions like legislatures and juries operate, whether in "normal" times in the libel case or under stress in the political-advocacy case. In my view, those judgments, while probably correct, are clearly open to reasonable contestation (juries might be better than doctrine takes them to be, etc.).

And, it turns out, nearly all of the actual proposals for revision of existing law -- including taking some constitutional issues away from the courts or altering the terms of judicial tenure -- have the same underlying analytical structure. Each one can be defended as a specification of the content of particular liberal constitutionalist norms (in the example, norms about freedom of expression and norms about judicial independence), and -- I think -- the specifications are within the range of reasonable disagreement about what those norms concretely require.

So, if the proposal are in themselves reasonable specifications of liberal constitutionalist norms, how can their adoption be a threat to liberal constitutionalism? More later.

[I've finally figured out how to enable comments,so perhaps some cogent comments will preempt my post-to-come.]

My first comment would be that a better description of Trump (and certainly of Hungary) would be "authoritarian populism". Right wing populism has, historically, been authoritarian, but it doesn't have to be, logically speaking. Use of that term, in turn, exposes some of the problematic aspects of Trumpism.

My other comment would be that a system with a strong Constitutional tradition is probably less at risk than a country like Hungary, but obviously if Trump were to make judicial appointments that could change quickly. And it is, of course, the actual interpretation and enforcement which can undermine liberal constitutionalism regardless of formal rules.

If group libel were more readily actionable, consider the claims that could be asserted against the presumptuous Republican nominee based on his campaigning.

Regarding Mark's bracketed closing:

"[I've finally figured out how to enable comments,so perhaps some cogent comments will preempt my post-to-come.]"

as a practical matter it might result in disabling comments on Mark's posts to come - or even disabling comments on this post. I base this on comments critical of recent posts by Mark, including on the rule of law.

Tweaking the 1A will likely not be a great threat to liberal constitutionalism given that other liberal nations have a somewhat different system without being illiberal.

Certain rules would likely be problematic and on the merits not worth the candle, especially criminal prosecutions. There is also debate over the proper rules for libel and such as seen by the variety of opinions from NYT v. Sullivan on in various Supreme Court cases alone. Some of the justices also offered possibilities such as some requirement to provide corrections or the like if some process is provided to do so and this very well might be done voluntarily with a streamlined process a lot less costly and drawn out than normal civil litigation.

I'm personally wary of weakening the rules here given my personal beliefs on proper First Amendment principles and current realities. But, serious debate is possible without seriously threatening liberal (small "l" since various ideologies support change here) principles.

OTOH, Trump himself doesn't appear to be a good prophet here, including as Mark Field notes, given his popular authoritarian principles. And, though I think some people might have cause to complain, doubtful someone in Trump's status really do. Put aside that on the merits, his claims of being treated badly tend to come off badly.

Or, suppose a government were to adopt a statute allowing criminal punishment for disseminating statements (a) that the legislature determines have a reasonable probability of inducing some listeners to engage in serious criminal activity, or (b) that a fact-finder of the usual sort -- a jury, in the United States -- determines has a reasonable probability of, etc...Again putting aside current US constitutional interpretations, I find it difficult to conclude that such statutes are a deep threat to liberal constitutionalism. The current US doctrine requires the polity to put up with with the dissemination of statements posing a reasonably high risk of inducing others to commit serious crime, mostly because historical experience isn't encouraging. But maybe the current doctrine errs on the side of requiring too high a risk -- or so someone might reasonably think. (The current British prohibition on indirect encouragement of terrorism is, in my view, a statute of the sort I've described.)

How does a statute prohibiting "indirect encouragement of terrorism" define the proscribed speech? For example, the ISIS terrorist Mateen cited US bombing in Afghanistan as a reason for his massacre of 49 Americans in Orlando. Therefore, would speech accusing the United States of committing war crimes against Afghan civilians in its bombing campaign violate a statute prohibiting indirect encouragement of terrorism, especially if the government could prove that Mateen listened to that speech before engaging in his terrorism?

I can easily see advocacy groups allied with elected prosecutors using this law to silence provocative speech by their political opponents. Pro-abortion groups already argue that anti-abortion speech arguing that abortion is murder incites terrorist acts against abortionists. Now they would have a criminal statute with which to silence the anti-abortion movement.

Or the government using using the law to crush dissent. Our DHS already considers "suspicion of centralized authority" and "reverence for individual liberty" to be "extreme right-wing" views which groups use as justification for terrorism; https://www.fbi.gov/about-us/nsb/tsc/terrorist-screening-center-frequently-asked-questions-032416.pdf and that such "right-wing extremism" is a threat equivalent to to work than Islamic terrorism seeking to impose a caliphate on the world. https://www.dhs.gov/sites/default/files/publications/Meeting%20Minutes%201%2021%2016%20Final.pdf

To borrow a related phrase, such a statute presents a clear and present danger to political speech and what is left of our classically liberal constitutional system.

"Or the government using using the law to crush dissent. Our DHS already considers "suspicion of centralized authority" and "reverence for individual liberty" to be "extreme right-wing" views which groups use as justification for terrorism; https://www.fbi.gov/about-us/nsb/tsc/terrorist-screening-center-frequently-asked-questions-032416.pdf and that such "right-wing extremism" is a threat equivalent to to work than Islamic terrorism seeking to impose a caliphate on the world. https://www.dhs.gov/sites/default/files/publications/Meeting%20Minutes%201%2021%2016%20Final.pdf"

Your reading of these is stubbornly silly. There are actual individuals and groups which espouse views with considerable overlap with the 'right wing' in general, but who, unlike the latter, larger group that live their lives without engaging in acts of extreme violence and criminality, these individuals and groups act in extreme ways. There are also actual individuals and groups with views with considerable overlap with the 'right wing' in general, but who have further beliefs that are more extreme than most in the 'right wing' in general (the sovereign citizen movement to take one example). It's clear that's who is being talked about there.

"Tweaking the 1A will likely not be a great threat to liberal constitutionalism given that other liberal nations have a somewhat different system without being illiberal. "

Indeed. I'd add that in the early days of our own nation, under the Alien and Sedition Acts, we had something somewhat similar to the examples mentioned and I don't think that meant we ceased to be a liberal republic (well, other than the fact that we were a nation with institutionalized slavery, misogyny, etc.).

I looked into the two Web citations that Mr DePalma cited but could not find the quoted phrases. Perhaps we are just supposed to take his views so seriously that we don't bother to find them groundless. The Trumpish approach to argument!

A Google search for "suspicion of centralized authority" "reverence for individual liberty" "extreme right-wing" leads only to Mr DePalma's post and a YouTube video that apparently has been taken down. Well I'll be a... search result! after putting up this disillusioned comment.

Mark, I think you don't understand the rules of the game: If somebody is of the opposing party/ideology, you're supposed to attribute the worst possible meaning to anything they say. So, Trump, for instance, notes that there are a lot of criminals among illegal immigrants from Mexico, you're supposed to remove the context and modifiers, and interpret it as him saying all Mexicans are rapists. Clear?

Larry, you might want to check this out. The key here isn't so much what is said, as what is missing. Aside from a lone reference to al Qaeda, (Contrasting them with domestic terrorism!) it's all about "- Eco-terrorists and animal rights extremists - Sovereign citizens movement - Anarchist Extremism - Militia Extremism - White Supremacy Extremism"

Now, you might protest that this is just the page on "domestic terrorism", but that's what the Orlando attack was labeled. And it didn't fall into any of those categories; Like most 'domestic' terror incidents, it was Islamic terrorism. The main source of terror attacks in the US is one the FBI, officially, will not acknowledge!

So, you want to find out about the Sovereign Citizens movement? Eco-terrorism? The Militia movement? No problemo.

You want to find out about domestic Islamic terrorism, and how to recognize the signs? You're going to come up empty. It doesn't exist, so far as domestic terrorism is concerned.

That bother you a bit? It bothers a lot of people. You can't fight what you're committed to not admitting exists.

We know the rules -- you play them a lot with "the Left" while continuously giving Trump the benefit of the doubt over and over again. We have plenty of "context" on Trump by now. There is a reason he has received such broad opposition across ideological lines.

As evidence comes out, just how much of a connection he really had with Islamic terrorists, putting aside in his own head, is somewhat unclear. And, to the extent he is, it is with INTERNATIONAL groups,* not purely "domestic" terrorism like those on that page. Is there a purely domestic Islamic terrorism akin to those other groups?

---

* Wikipedia summarizes: "family connections to al-Qaeda and that he was a member of Hezbollah" ... "family connections to al-Qaeda and that he was a member of Hezbollah" ... "pledged allegiance to ISIL." INTERNATIONAL.

---

At first blush, sounds like a classification matter -- the groups listed are basically purely domestic, "homegrown," while Islamic terrorism -- which has been targeted & arrests made so the FBI realizes it exists -- is deemed more international. Also, the links clearly aren't comprehensive even there; e.g., deadly anti-abortion radicals.

Larry: I looked into the two Web citations that Mr DePalma cited but could not find the quoted phrases.

I cut and pasted the incorrect first link. Here is the correct link and money quote:

Extreme Right-Wing: groups that believe that one’s personal and/or national “way of life” is under attack and is either already lost or that the threat is imminent (for some the threat is from a specific ethnic, racial, or religious group), and believe in the need to be prepared for an attack either by participating in paramilitary preparations and training or survivalism. Groups may also be fiercely nationalistic (as opposed to universal and international in orientation), anti-global, suspicious of centralized federal authority, reverent of individual liberty, and believe in conspiracy theories that involve grave threat to national sovereignty and/or personal liberty.

My second link was correct and here is the money quote from those DHS minutes:

Member Acevedo reminded the Council that the threat from right wing extremists domestically is just as real as the threat from Islamic extremism. Secretary Johnson agreed and noted that CVE, by definition, is not solely focused on one religion. Member Goldenberg seconded Member Acevedo’s remarks and noted the importance of online sites in right wing extremist communities, not only in America but worldwide.

Larry: A Google search for "suspicion of centralized authority" "reverence for individual liberty" "extreme right-wing" leads only to Mr DePalma's post and a YouTube video that apparently has been taken down.

Your Google must have the same censors who ensue that negative Hillary Clinton stories have low priorities. I found the correct DHS report link in less than a minute using those search phrases.

"As evidence comes out, just how much of a connection he really had with Islamic terrorists, putting aside in his own head, is somewhat unclear."

Asking for that connection misunderstands the whole problem here, IMO.

Islamic terror isn't primarily a top down phenomenon, that you could end by taking out a few leaders.

It's more like radioactivity: You've got a sample of U235, you never know which atom is going to split next, but you know two things: Some of them ARE going to split, and if you pile enough in one place you're going to get a radioactive crater.

That's the relationship between Islam and Islamic terror. Muslims are the fissile isotope, terror the radioactivity. Any given atom of U235, in isolation, might go hundreds of millions of years without popping. Collect together a bit of it, the odds go up a little. A bit more, the chunk starts to get hot. 52 kg? Smoking hole in the ground.

The thing is, at one time you could safely disperse Muslims just by having them diluted in a mostly non-muslim population, and you'd be ok, they wouldn't be any worse than any other group, even if every society where they were the majority was a horror show. Today, a Muslim can end up part of a critical mass by communicating with other Muslims via the internet. So even isolated Muslims are no longer safe.

This is, I think, the existential crisis for modern liberalism: Multiculturalism meets a culture than it can neither deal with, nor coexist with. Our dominant ideology has met a threat it can't even acknowledge could exist.

Bart, I don't know what's worse, the logical nightmare that is your 'argument' surrounding the documents you invoke or that you put them forward when the very sources you cite so decisively refute them! For example, from the START link:

"First, at no point has any START study defined persons "suspicious of centralized federalauthority" and "reverent of individual liberty" as terrorists. Instead, we assigned ideological classifications only to groups that have already carried out completed or attempted terrorist attacks...This mischaracterization of our work is a logical fallacy on par with stating that because some apples are red, all things red must be apples." p1-2

I'll start by noting that I poked around the FBI cite, and you're correct, there doesn't seem to be much explicit mention of Islamic based domestic terrorism. I think it's fair to agree with you that that is odd. As you note, there's plenty of discussion of 'left wing' domestic terrorist acts and groups, so I don't think they're picking on 'right wing' groups, but I do think they must be consciously not talking explicitly about Islamic based terror (though I'll note that the source Bart supplied does talk about explicitly). Now, why do you think that is?

Now, about your 'Muslim-radioactive' analogy...It's not that I can't see what you're talking about. There's certainly groups and individuals motivated by Islam who have and want to continue to kill Westerners and many Muslims that believe in very illiberal ideas.

But don't you think that to a third party observer your analogy would also fit 'right wing extremist' groups and individuals? Studies suggest we've had more violent events so motivated in the US than we have Islamic motivated ones. Should we conclude that there's something about current right wing ideology *in general* that seems to provoke many people to acts of murderous, angry violence?

Uh, why would a group that wants to stop terrorists try to understand the various motivations of terrorist groups? It's kind of helpful to know the motivations of them in addressing them, wouldn't you think? Note they identify left wing groups, animal rights motivated groups, along with ethno-nationalist separatists.

It's amazing that on one day conservatives can be crying 'why won't they identify radical Islam as the motivator of events like Orlando, how can we hope to stop it if we don't correctly identify it' and then turn around the next day and say 'what are they up to in indenfitying the motivation of right wing (among other groups) motivations? What nefarious plot?'

Mr. W: Uh, why would a group that wants to stop terrorists try to understand the various motivations of terrorist groups? It's kind of helpful to know the motivations of them in addressing them, wouldn't you think?

In other words, DHS is developing profiles of terrorists.

Would it not then be reasonable to assume that DHS would list Americans who fit the profile of a terrorist on their "terrorist watch list?"

Also, would it not be reasonable to assume that DHS could consider people who communicate the ideas of limited government and suspicion of central government to be indirectly encouraging terrorism?

On a related note, the Department of Justice is censoring transcripts of the Orlando ISIS terrorist's calls to 911 during his attack to remove his pledges of allegiance to ISIS. The AG's reasoning is that she does not want those pledges to encourage further terrorism.

"But don't you think that to a third party observer your analogy would also fit 'right wing extremist' groups and individuals?"

Here's the thing: Look around the world: How many majority Muslim societies do you see that are remotely pleasant places to live? How many pleasant places to live are run by the right?

If you get enough Muslims together, for all practical purposes the "extremists" take over, every time. There aren't any counter-examples that I know of.

Judaism isn't like that. Christianity isn't like that. Hinduism isn't like that. (Implied today, so don't bother bringing up the Crusades until Islam has it's own Reformation.) But, Islam is like that, conspicuously.

Almost every element has a radioactive isotope. Not every radioisotope has a critical mass where it explodes. This makes for a significant difference between properties in small quantities and large. Some things you can safely pile up. Some things blow up on you if you get too much in one place.

Islam was the same 50 years ago as today, in that respect. What's different today is that, with modern communications, is that Muslims don't have to live in the same place to get together in a critical mass and "blow up". Any random Muslim living anywhere is subject, without much warning, to ending up as part of a critical mass.

While I have been focusing my comments on satire, parody or spoof at Gerard's post, I have been following comments at this and other posts. My comment today on this post is to bring to the attention of the usual suspects Juan Cole's post:

http://www.juancole.com/2016/06/palmer-grandfather-profiled.html

with the title "When Trump's Grandfather and Wives could have been Profiled." A direct link is available at Cole's Informed Comment Blog.

Query: Might there be a satire, parody or spoof utilizing Cole's post to compare with the Donald's current goal of profiling? Sour kraut?

Note: The Palmer Method described in Cole's post is not the Palmer Method I learned in grade school in Boston.

Also of interest in Cole's post is how The Donald's grandfather got the "f" out of Trumpf, something the GOP Clown Limo sweet 16 vanquished by Trump were unable to accomplish.

" It's kind of helpful to know the motivations of them in addressing them, wouldn't you think? " does not equate to "developing profiles of terrorists." But if they were, what are you imagining here, that everyone who has 'extreme right wing' views, 'religous', 'left wing,' anti-nuclear, anti-abortion, and animal rights views is going to be put on the watch list (all of these are explicitly named and discussed in that report)?

"would it not be reasonable to assume that DHS could consider people who communicate the ideas of limited government and suspicion of central government to be indirectly encouraging terrorism?"

Only to someone like yourself who is prone to making the logical error the authors of the report note. All apples being red doesn't make all red things apples.

Brett, you didn't seem to answer my question. We've had more right wing extremist violent events in recent times in our nation, so by your logic should we consider US right wing views in general to be 'radioactive?'

I'd say Lebanon, Turkey, Malaysia and now Tunisia are good counter examples.

Further, if someone said, especially a decade or two ago, that "If you get enough Latin Americans together, for all practical purposes the "corrupt, authoritarian regimes plagued with narco-terrorism" take over, every time. There aren't any counter-examples that I know of" there would seem to me to be about as much support for that...In fact, before 9/11 narco-gangs and their violence were discussed with an apprehension now reserved for 'Muslims.'

Freedom House ranks Lebanon, Turkey, Malaysia and Tunisia as Partly Free (the same, for example, as the Philippines where your wife is from) for the first three and Free for the last. All are majority Muslim nations.

Mr. W: " It's kind of helpful to know the motivations of them in addressing them, wouldn't you think? " does not equate to "developing profiles of terrorists."

The first place you start in developing a profile is identifying what motivates the profiled person, then you start looking for suspects which fit your profile.

But if they were, what are you imagining here, that everyone who has 'extreme right wing' views, 'religous', 'left wing,' anti-nuclear, anti-abortion, and animal rights views is going to be put on the watch list (all of these are explicitly named and discussed in that report)?

Given DHS's point of view of that belief in limited government and suspicion of central government motivates "extreme right-wing" terrorists, DHS's ranking of such terrorists alongside groups with which we are at actual war, the Obama IRS and other agencies' history of persecution of peaceful groups who believe in limited government and are suspicious of central government, and congressional Democrats opposition to compelling DHS to offer evidence providing probable cause to believe a person DHS places on the "terrorist watch list" is an actual terrorist, I could easily see the DHS bureaucracy placing outspoken or politically threatening libertarians and conservatives on that list.

Bureaucracies move incrementally. DHS would likely start with those of us who have spoken in theory and others who have spoken in anger about armed revolution, even though there is no evidence than any of us are actually planning to or participating in a revolution. Then they would move onto folks and/or groups it found accusing the government of violating the law at places like Ruby Ridge and Waco or committing warcrimes on the ground that these are the demonstrated motivations of multiple real life terrorists. Using the Obama IRS as precedent, I can easily see a Democrat administration DHS (especially under a Nixonian paranoid like Clinton) placing the members of various Tea Party or similar grass roots groups on the list to harass them. If this makes the threat more real for you, I can also see a fascist like Trump going after various people and groups criticizing him. When the persecuted start revolting, some of them violently, DHS would use this as pretext to add more people and groups to the list.

This reasoning similarly applies to Mark's proposed law criminalizing indirect incitement of terrorism.

Government denying people rights and liberties based on placement on an enemies list never ends well.

How does one profile a person suggesting "armed revolution" as an alternative to governmental dysfunction and has expressed the belief that the 2nd A was designed by the framers (in this case Congress) and ratifiers to challenge the central government for allegedly being tyrannical?

The Declaration of Independence offered a legal and moral basis for armed revolution; the 2A of the Bill of Rights maintains the ability of the citizenry to rise in armed revolution; and before the advent of a large standing army (which nearly all of the Founders opposed), the Militia Clause forced the national government to rely upon the armed citizenry as a military force during a revolution, which placed it at an immediate disadvantage if the revolution was a genuinely popular uprising.

I can see DHS adding a variety of people to its "terrorist watch list" for reasons ranging from merely noting this very politically incorrect history of our basic law established by our armed revolutionary founders, to arguing that our current government increasingly meets the requirements of the Declaration for an armed revolution, to openly advocating revolution based on the Declaration.

Indeed, I believe that the government has been tracking people and groups which fall under the last category for some time, even if these would be revolutionaries lack the actual capability of executing the revolution for which they call.

Bart, do you think the kind of profiles you're talking about are used like this: 'Many criminals of this type hate their parents, therefore everyone that hates their parent is a suspect!' That's laughable.

There are criminal groups and individuals that are motivated by right wing views. Point blank: do you deny this fact? If not, are those tasked with better understanding them supposed to ignore their stated motivations and the roles they play because those with slippery grasps on logic and/or oversensitive natures are going to be offended in thinking they're talking about them?

Not quite but SPAM I AM! tried to qualify himself as an expert on profiling. Perhaps I should have included in my question that the person claim to be an expert in criminal law.

Then SPAM I AM! went on with this:

"The Declaration of Independence offered a legal and moral basis for armed revolution; the 2A of the Bill of Rights maintains the ability of the citizenry to rise in armed revolution; and before the advent of a large standing army (which nearly all of the Founders opposed), the Militia Clause forced the national government to rely upon the armed citizenry as a military force during a revolution, which placed it at an immediate disadvantage if the revolution was a genuinely popular uprising."

The Declaration served a purpose for a situation that existed in 1776. But neither the Articles of Confederation nor the 1787 Constitution, as amended to date, incorporated by reference the Declaration. That should be apparent to a textualist. Rather than the militia clauses of the 1787 Constitution "forcing" the central government, it empowered the central government to take certain steps with the state militias for certain specified purposes. The 2nd A, ratified in 1791, did not amend the militia clauses. SPAM I AM!, who claims to be a textualist, reads into the 2nd A a right under certain circumstances to individuals to challenge the central government by means of armed revolution. At other threads at this Blog I asked SPAM I AM! (remember, he's a textualist) to point to specific language in the Constitution to support this claim of his. He has not done so. SPAM I AM!'s references to the Declaration do not suffice, as the Declaration was not incorporated into the 1787 Constitution as amended to date. The Constitution does not provide America's people with the right to revolt against the central government for what some (how many?) people consider tyranny or some other failing (dysfunctional governance?). And keep in mind the supremacy clause with a standing army behind it to respond to such armed revolution. Perhaps SPAM I AM! will cease to be a textualist, when it serves his purposes). SPAM I AM! can continue to buck and weave but he has yet to identify specific language in the Constitution as amended to support his claim of armed revolution against the central government. SPAM I AM!'s claim sounds a tad like terrorism.

The Declaration served a purpose for a situation that existed in 1776. But neither the Articles of Confederation nor the 1787 Constitution, as amended to date, incorporated by reference the Declaration...The Constitution does not provide America's people with the right to revolt against the central government

Two different documents for different purposes.

The Declaration established that the government is the servant of the people, the primary purpose of government is to protect our liberty and the people as master of the government may remove the government when it acts to destroy our liberties.

The constitutions attempted to create governments which achieve the purposes laid out in the Declaration - serving the people and protecting our liberties. The Articles were a failure, but the Constitution was largely successful until it was progressively gutted over the past century.

Rather than the militia clauses of the 1787 Constitution "forcing" the central government, it empowered the central government to take certain steps with the state militias for certain specified purposes. The 2nd A, ratified in 1791, did not amend the militia clauses.

Who is arguing that the 2A amended the Militia Clause? Instead, the 2A reinforced the Militia Clause by preventing Congress from disarming the militia / armed citizenry.

SPAM I AM!'s references to the Declaration do not suffice, as the Declaration was not incorporated into the 1787 Constitution as amended to date. The Constitution does not provide America's people with the right to revolt against the central government for what some...

As the Declaration noted, the people have a natural right to remove governments which destroy their liberties. Natural rights are not granted by governments or constitutions.

And keep in mind the supremacy clause with a standing army behind it to respond to such armed revolution.

Just the standing army, which is why our revolutionary founders largely opposed a large standing army.

SPAM I AM!, a purported textualist, continues to fail to point to a specific provision in the Constitution as amended to support his claim of the American people's (how many?( right to resort to armed revolution against the central government if they believe the central government is acting tyrannically or for some other alleged failures. SPAM I AM! dances arounf in avoiding a direct response.

Perhaps SPAM I AM! looks upon the 2nd A as protective of arms-wielding whistleblowers. (Bullets from an assault rifle sort of have a whistling sound.) As I noted at the end of my earlier comment: "SPAM I AM!'s claim sounds a tad like terrorism." I was being polite. Keep in mind his oath as an attorney concerning the Constitution.

"The constitutions attempted to create governments which achieve the purposes laid out in the Declaration - serving the people and protecting our liberties. The Articles were a failure, but the Constitution was largely successful until it was progressively gutted over the past century."

Yeah, the Constitution was largely successful in protecting our liberties-if, that is, you ignore that whole chattel slavery thing that led to and only ended after a Civil War that nearly tore the nation apart. It's always interesting how self-styled libertarians gloss over the actual (as opposed to their rhetorical 'the slavery of federal regulations' nonsense) period of slavery in our history...

As to Shaq and Bart's argument, I think they're both right, the Founders would have agreed that a government which is tyrannical is one in which overthrow is justified (they wouldn't have recognized Bart's low and selective bar for when that kind of tyranny exists), but when they were righting the Constitution-after and in large part to address recent uprisings-I doubt they were thinking much about institutionalizing rebellion!

Shag: SPAM I AM!, a purported textualist, continues to fail to point to a specific provision in the Constitution as amended to support his claim of the American people's (how many?( right to resort to armed revolution against the central government if they believe the central government is acting tyrannically or for some other alleged failures.

What part of the people's power to remove a government destroying their liberties is a natural right and constitutions do not create natural rights did you not understand?

No constitution provided the American colonists with the right to wage armed revolution against the British Crown.

Perhaps SPAM I AM! looks upon the 2nd A as protective of arms-wielding whistleblowers. (Bullets from an assault rifle sort of have a whistling sound.)

Whistling sound? :::chuckle:::

You clearly have not had military small arms fired at you.

I have never once heard a M-16 or AK-47 round whistle. As those of us who have served on firing ranges or been the target of small arms fire during combat can tell you, these rounds make a sharp crack as they pass by your head and occasionally whine if they ricochet off of a hard surface.

BD: "The constitutions attempted to create governments which achieve the purposes laid out in the Declaration - serving the people and protecting our liberties. The Articles were a failure, but the Constitution was largely successful until it was progressively gutted over the past century."

Mr W: Yeah, the Constitution was largely successful in protecting our liberties-if, that is, you ignore that whole chattel slavery thing that led to and only ended after a Civil War that nearly tore the nation apart. It's always interesting how self-styled libertarians gloss over the actual (as opposed to their rhetorical 'the slavery of federal regulations' nonsense) period of slavery in our history...

Democrat slavery and Jim Crow and the lack of the female franchise is why I quite intentionally used the word "largely."

As to Shaq and Bart's argument, I think they're both right, the Founders would have agreed that a government which is tyrannical is one in which overthrow is justified (they wouldn't have recognized Bart's low and selective bar for when that kind of tyranny exists), but when they were righting the Constitution-after and in large part to address recent uprisings-I doubt they were thinking much about institutionalizing rebellion!

Apart from the sins mentioned above, the people of the American colonies were FAR freer that we are today. You could fit all the laws affecting the lives of the average colonist in a handful of books. The tax burden was less than 5% of GDP. American smugglers regularly bypassed the British mercantile system and traded freely.

The British Crown against which the colonists rebelled was destroying liberties at a markedly lower pace than our own government over the past several decades. If transported to the present time, I have every reason to believe that our Founders would be absolutely horrified at our current government and nearly all would be calling for another revolution.

So SPAM I AM! concedes that the Constitution as amended has no specific provision supporting his claim for the people to engage in armed revolution. There may be natural rights claimed under the Constitution, but natural rights not specifically designated in the Constitution as amended are separate from the Constitution's protection. Of course, there is no universally accepted list of natural rights that are protected by the Constitution. New natural rights surface from time to time.

Assuming there is a natural right of armed revolution, it should be understood that if the revolution fails, those engaged in it who survive are treated as criminals. Even when an armed revolution is successful, what follows may not be successful, as evidenced by armed revolutions in our lifetimes. The American Revolution was successful. We could spend a lot of time discussing why it succeeded, including logistics. The American Revolution was followed by the Articles of Confederation. But the Articles were not working out well. This was recognized by the 1787 Constitutional Convention. There was the Civil War beginning in 1861. The secessionist Confederacy lost and the Constitution was amended by the 13-15th Amendments to keep the Union intact. Since then there haven't been significant armed revolutionary challenges to the central government under the Constitution as amended. There have been some scary situations by non-state militia groups. While the civil rights movement in the 1950s, '60s, '70s, and continuing had to face armed resistance from time to time, including by the KKK, the central government has been able to maintain control. Consider Timothy McVeigh and the Bundy clan. And we had a Watergate that seriously threatened America's form of governance. The central government has not been able to stop these non-state militia groups from forming. Many of these groups bear racial animosities, as they keep and bear arms, some, like SPAM I AM! in case an armed revolution is necessary as determined in their own minds. Assuming armed revolution is a so-called natural right of the people to challenge tyranny, these groups intend to foment fear, often racial in nature, rather than engage in open armed revolution. This describes terrorists.

Perhaps SPAM I AM! can identify times in America after the Civil War ended that armed revolution against the central government would have been appropriate. I assume that SPAM I AM! in his Chicken Little state of mind might come up with events attributable to progressives, including, in his mind, George W. Bush, Herbert Hoover and Woodrow Wilson.

My use of an attempt at metaphor may have been diminished by my parenthetical comment of bullets whistling, intended as whistling other than in a sense of sound, "bullets whistling by." Spam I AM! in comments at other threads at this Blog played the military card, bragging about when he was an Army Intel Officer during the Clinton Administration. Was his claim of combat during the Clinton Administration? Is SPAM I AM! claiming he was a recognized military hero? I haven't seen his military record so I have no idea other than SPAM I AM!'s comments at this Blog of the extent of his military career. I grew up in a time when those who served in the military did not like to talk about their combat experiences. But this is the Internet and SPAM I AM! will continue to play the military card, narcissist that he is.

I am a post Korea, pre Vietnam, veteran and saw no combat. I did the crawl in basic training under machine gun fire. It was scary. I was not fired at with military small arms. I am not, as I said, in a position to know details of his military experience, and I don't wish to know. But SPAM I AM! put on his colon-chucklehead face on the audio of bullets. That could be a new designation for SPAM I AM! but it's not as good as the old 'Rhoidless moniker I laid on him which is a more apt description of SPAM I AM!

Shag: Assuming there is a natural right of armed revolution, it should be understood that if the revolution fails, those engaged in it who survive are treated as criminals. Even when an armed revolution is successful, what follows may not be successful, as evidenced by armed revolutions in our lifetimes.

Completely agreed. Armed revolutions rarely turn out well, often make things worse and should be avoided except as an absolute last resort.

The American Revolution was successful. We could spend a lot of time discussing why it succeeded, including logistics.

So long as the American revolutionaries do not surrender, it was impossible for the British to win because they only fielded a fraction of the soldiers necessary to hold a very large territory against an armed population. As soon as the British Army left an area, control reverted to the revolutionaries.

The American Revolution was followed by the Articles of Confederation. But the Articles were not working out well.

The American republic nearly became a failed state in the years following the war. GDP collapsed by a fifth and we suffered through our first stagflation. The sovereign states were massively in debt, erecting trade barriers against one another and issuing worthless fiat money. American confederacies were disasters both times they were tried.

The Constitution was a very effective limited government compromise between the tyranny of the Crown and the near anarchy of confederacy.

Slavery was around quite a while before there even was a 'Democrat party' to speak of.

"...and Jim Crow and the lack of the female franchise is why I quite intentionally used the word "largely.""

Bart, when you're in a hole you really, really should stop digging. It would have been better for you to just say 'yes, I'm quite white-centric in how I think about liberty, it's a bias of mine I should probably address that renders me more than a bit obtuse when talking about many things.' Instead you say you were quite intentional in writing that the period of our history in which 10-15% of the population was subjected to actual, total chattel slavery* constituted the period where we were 'largely' free. It's no wonder there are so few black people at libertarian conservative events!

* Of course, during the same period women were denied even the most basic political and economic rights.

"he people of the American colonies were FAR freer that we are today. You could fit all the laws affecting the lives of the average colonist in a handful of books."

You're being uncommonly silly. The main agitation for the colonists were that they were being ruled without their consent, there was no representation for them in the Crown's rule. The first eight complaints listed in the Declaration of Independence all center on the Crown's denial and obstruction of the colonists right to rule themselves (and many of them center on the Crown *preventing* the passing of laws!). We now are represented.

SPAM I AM!'s comment on my machine gun crawl causes me to think back about that time in 1955 at Fort Dix. Ilearned the true meaning of "scared s**t, even though I was aware in advance of the infiltration course crawl that the line of fire was significantly high enough that staying safe did not require making love to terra firma (although only the terra firma). In fact, because it was peacetime, some of us were told that if we stood up we would be safe. This was at night time and the tracers made it even scarier. And I wasn't whistling Dixie.

And Mr. W, you are wrong with "You're [SPAM I AM!] being uncommonly." That's become more and more common for SPAM I AM!

Mr. W: Slavery was around quite a while before there even was a 'Democrat party' to speak of.

From its outset, the Democrats were the party of slavery and they were the only party of slavery left by the time of the Civil War.

BD: "...and Jim Crow and the lack of the female franchise is why I quite intentionally used the word "largely.""

Mr. W: Bart, when you're in a hole you really, really should stop digging. It would have been better for you to just say 'yes, I'm quite white-centric in how I think about liberty, it's a bias of mine I should probably address that renders me more than a bit obtuse when talking about many things.'

European-Americans made up the vast majority of the People covered by the Constitution. White women enjoyed nearly all the liberties of their male counterparts apart from the franchise/

"Largely" is an accurate term.

BD: "the people of the American colonies were FAR freer that we are today. You could fit all the laws affecting the lives of the average colonist in a handful of books."

You're being uncommonly silly. The main agitation for the colonists were that they were being ruled without their consent, there was no representation for them in the Crown's rule.

Democracy is a means for the people to run their government. Freedom is the ability to live our lives as we please so long as we do not harm others. These are not remotely the same things. Without limitations on government power and protections of liberty, democracies very often turn despotic with majorities destroying the liberty of minorities and surrendering their own liberty in exchange for the illusion of safety.

While it is true that our democracy was limited to colonial legislatures and that limitation was an ample reason for revolution, that fact does not alter my point - the American colonials were far freer from government direction than we are today.

When SPAM I AM! refers to "The people of the American colonies" I assume he means before the Declaration of Independence. If so, and SPAM I AM! claims thatthey were far freer than today, he's saying that they were better off than after the American Revolution, with suggests that it was a mistake to break away from the motherland.

Shag: When SPAM I AM! refers to "The people of the American colonies" I assume he means before the Declaration of Independence. If so, and SPAM I AM! claims thatthey were far freer than today, he's saying that they were better off than after the American Revolution, with suggests that it was a mistake to break away from the motherland.

That is one tortured confusion of cause and effect.

American colonists were less free than after winning the Revolution and enacting the Constitution and more free than Americans today today.

Bart DePalma said...democracies very often turn despotic with majorities destroying the liberty of minorities and surrendering their own liberty in exchange for the illusion of safety.

Given your views on gay people, I thought that you were in favor of the majority destroying the liberty of minorities. Apparently you're only in favor of protecting minorities when you see yourself as part of a minority. Sadly, being a racist bigoted asshole probably does not make you a minority.

Let's put this in context. This is what SPAM I AM! had said in an earlier 3:29 PM comment:

"Apart from the sins mentioned above, the people of the American colonies were FAR freer that we are today. You could fit all the laws affecting the lives of the average colonist in a handful of books. The tax burden was less than 5% of GDP. American smugglers regularly bypassed the British mercantile system and traded freely.

The British Crown against which the colonists rebelled was destroying liberties at a markedly lower pace than our own government over the past several decades. If transported to the present time, I have every reason to believe that our Founders would be absolutely horrified at our current government and nearly all would be calling for another revolution."

SPAM I AM!'s recent response referenced this:

"Shag: When SPAM I AM! refers to "The people of the American colonies" I assume he means before the Declaration of Independence. If so, and SPAM I AM! claims thatthey were far freer than today, he's saying that they were better off than after the American Revolution, with suggests that it was a mistake to break away from the motherland."

Usually SPAM I AM! goes back to The Gilded Age of the late 1870s as America's best days. Now he goes back to the Founding. His "I have every reason to believe ..." is sheer fantasy on his part, confusion, self-delusion. SPAM I AM! more than suggests that American colonists before the American Revolution were freer than Americans today.

Alas, SPAM I AM! displays his ignorance of "cause and effect." In effect SPAM I AM! is saying we have a more imperfect Union today than at the Founding. This ignores so many things, such as the Civil War and the Reconstruction Amendments, and those that followed.

Mark Graber's June 21st post is interesting. I had expected a response post from Sandy. Perhaps it may come in due course. I'm not convinced that Mark's reference to Sandy in the post may be appreciated by Sandy. Comments are not accommodated by Mark, and I do not urge him to open to comments. But if Sandy does post on this, hopefully comments will be accommodated. I recall a past post that addressed Charles Beard's article on the Founders in connection with an anniversary symposium on Beard, who may have moderated his critique of the Founders, who did in fact have self-interests. The Founders were the elite of the time. They did have public good in mind, but then again human nature played a part with their self-interests.

Query: Did such self-interests constitute a natural right at the time of the Founding? Today?

Shag: In effect SPAM I AM! is saying we have a more imperfect Union today than at the Founding. This ignores so many things, such as the Civil War and the Reconstruction Amendments, and those that followed.

Our freedom from government direction has nothing at all to do with the strength of our political union of states.

"Slavery was around quite a while before there even was a 'Democrat party' to speak of.

From its outset, the Democrats were the party of slavery"

This is, of course, demonstrably non-responsive to my point that slavery pre-existed the Democratic Party.

"European-Americans made up the vast majority of the People covered by the Constitution..."Largely" is an accurate term."

You continue to dig. Wow. Anyone other than you might be somewhat deterred by the prima facie absurdness of a self professed 'libertarian' preferring a nation that had sanctioned and institutionalized total chattel slavery of 10-15% of its population as one that 'largely' protects liberty because 85% of the population weren't enslaved. Note this is the same man caterwauling because a relatively tiny percent of the population may, may, be temporarily prevented from purchasing a firearm without a full judicial hearing, but he handwaves away the actual institution of slavery.

"White women enjoyed nearly all the liberties of their male counterparts apart from the franchise/"

Again, a man so disturbed by the possibility of the temporary deprivation of 2nd Amendment rights for a sliver of the population handwaves away the fact that a majority of the population were denied any political voice at all. But his further statement is false as well. Women were barred from many professions (could they represent you at bar as a lawyer?), from basic educational opportunities (were women admitted to early public colleges such as Jefferson's University of Virginia?), from basic property rights (coverture), and if they sued for anything in court (which they were limited from doing if they married) they faced all male juries to decide their cases. This was literally a hundred fold worse than, say, the temporary deprivation of 2nd Amendment rights, and it affected a much, much larger percent of the population. Yet it's handwaved away by Bart. His myopic obtuseness about anything outside his own interests and experience seems to know no bounds.

"While it is true that our democracy was limited to colonial legislatures and that limitation was an ample reason for revolution, that fact does not alter my point"

This shows you missed mine though-in deciding whether they were under a tyranny worthy of overthrow our forefathers noted primarily their denial of representation, something that doesn't exist today.

SPAM I AM! prefers an unregulated America, not only at the level of the central government but also at the state levels. Alas, there were regulations back in those days of the American colonialists. The 1787 Constitution empowered regulations at the federal level and recognized the role under federalism of the power of states to regulate, subject to the supremacy clause. SPAM I AM! provides us with a list of 8 freedoms/liberties that American colonists had that we don't have today and is apparently prepared to add to the list. Perhaps he might add the freedom/liberty to pollute.

Perhaps Mr. W will respond to the 8 freedoms/liberties American colonists had. SPAM I AM! has opened a Pandora's Box of inanity. While the "yoke" may be on us, the joke is on SPAM I AM!

"During which period - before the Revolution or today - were Americans freer to perform these acts of life:

Pursue the avocation or profession of our choice?

Establish and operate a business?

Construct a home or a commercial building?

Build a home or establish a business in the location of our choice?

Own and operate personal and commercial transportation?

Produce and purchase the goods and services of our choice?

Enter into voluntary contracts of our choice?

Keep more of our earnings?"

If they were women or blacks or gays who acted upon their orientation, they had far, far less in virtually every area. The first were barred from many professions and if married lost virtually all economic rights, the second had none of these rights at all if slaves and the ones that were free had their's severely truncated, the latter faced imprisonment and death for acting upon their orientations.

Let's also remember that in Bart's 'glory days' the federal courts did not vindicate the Bill of Rights, incorporation did not exist and so state governments could do whatever their state courts would let them. The Alien and Sedition acts made sure that people who spoke about the government the way Bart does ours would be jailed, there was no exclusionary rule so police investigated virtually however they wished, vagrancy laws imprisoned people for the 'crime' of having no means, state courts regularly upheld restrictions on firearms that today would have Bart caterwauling, state and federal governments regularly gave out exclusive monopolies in businesses, especially in transportation, corporate actions were closely policed according to the ultra vires doctrines of the day, personal conduct such as sodomy, adultery, cohabitation, 'criminal conversation' (look it up!), possession/sale/even talking about(!) contraception was closely regulated, Blue Laws restricted virtually all economic activity on Sabbath days (but traditional Christian Sabbaths only of course), several states operated established churches forcing taxpayers to subsidize them, Native Americans were routinely deprived of basic rights, white abolitionists were imprisoned for speaking against slavery, for the 'crime' of teaching blacks to read and write,....

Brett, as I've said I'm against these measures myself, I'm just pointing out the absurdity of Bart's outrage at them while handwaving away the more outrageous government practices subsequent to the Founding.

I'm glad joe mentioned Sotomayer's dissent, I'm curious as to what out civil libertarian libertarians think about that case. Saying that that an illegal stop by a police officer is OK for Fourth Amendment purposes as long as the authorities can after the fact find an existing warrant strikes me as worse than the 'no buy list' proposals (which, again, I oppose).

Breyer -- who has a mixed record on 4A issues (he had some highlights the other way) -- went along with the majority. But, otherwise, the usual lines were present. Scalia was a bit of a wild card in this area -- he didn't support the exclusionary rule, but had some good moments regarding searches in general.

Mr. W: Anyone other than you might be somewhat deterred by the prima facie absurdness of a self professed 'libertarian' preferring a nation that had sanctioned and institutionalized total chattel slavery of 10-15% of its population as one that 'largely' protects liberty because 85% of the population weren't enslaved.

You continue to plumb new lows.

Noting that the vast majority of the American population was freer before the Revolution than today hardly means that I support returning to rule by the Crown or to slavery. Likewise, the enslavement of a minority of our population did not make the majority any less free.

BD: "White women enjoyed nearly all the liberties of their male counterparts apart from the franchise/"

BD: Women were barred from many professions (could they represent you at bar as a lawyer?), from basic educational opportunities (were women admitted to early public colleges such as Jefferson's University of Virginia?), from basic property rights (coverture), and if they sued for anything in court (which they were limited from doing if they married) they faced all male juries to decide their cases.

Barred by whom? At that time, the government did not license the professions or offer much in the way of public education.

Single women had all the property rights of men and could and did enforce them in courts. Coverture is an exception, which is why I very intentionally used the phrase "nearly all."

Most of your complaint is with the society of the day, where men declined to work with women and women had not yet pushed back, not with the freedom from government direction of their lives.

BD: "During which period - before the Revolution or today - were Americans freer to perform these acts of life:Pursue the avocation or profession of our choice?Establish and operate a business?Construct a home or a commercial building?Build a home or establish a business in the location of our choice?Own and operate personal and commercial transportation?Produce and purchase the goods and services of our choice?Enter into voluntary contracts of our choice?Keep more of our earnings?

Mr. W: If they were women or blacks or gays who acted upon their orientation, they had far, far less in virtually every area.

When I was born (1930), Herbert Hoover, a Republican, was President. But I was not aware of him until some years later. I learned of his campaign slogan "A Chicken in Every Pot and a Car in Every Garage." SPAM I AM! claims the Republican Hoover was a progressive. Of course, the Roaring 20s left by Harding and Coolidge, both Republican conservatives, did not perform for this slogan what with the Great Depression that started in the first year of Hoover's term.

Jumping ahead to today's income/asset inequality, what about the 2nd A inequality? Perhaps Hoovers's slogan might be expanded to include "and an assault rifle in every home." SPAM I AM! and Brett regard the 2nd A as absolute and as permitting for armed revolution against what they perceive as tyrannical government. By addressing this 2nd A inequality, we could have people who object to the armed revolution views of SPAM I AM, Brett and their ilk, be well armed to counter such armed revolution. SPAM I AM!, Brett and their ilk don't like leveling playing fields to address discrimination of the "others," so I doubt they would want to level the 2nd A playing field.

SPAM I AM! displays his myopia. "Law" is regulation, including both common law and statutory law, regulating people, such as the American colonists. Is this the "freedom under law" that SPAM I AM! addresses. What "freedom under law" did the slaves have, women Native Americans, etc, who were excluded from the society that "self imposed limitations."?

Dumbfuck, society didn't self impose those limitations. The people with the power imposed them on the people with no power (which usually meant women or minorities). The reason you're not discussing them is because you're fine with imposing your views on others. You're only concerned with the rights of minorities when you see yourself as part of the minority.

"Likewise, the enslavement of a minority of our population did not make the majority any less free."

What it does is demonstrate the absurdity of a person calling themselves a 'libertarian' saying that a society with actual, honest to goodness institutionalized slavery of 15% of the population is one that is 'largely' free and better than the one we have now. This is because actual slavery is magnitudes more serious, re: liberty, than having to comply with federal labor standards or state licensing requirements, etc.

"Barred by whom? At that time, the government did not license"

You're making a common mistake here. Before licensing requirements there were still restrictions on who could represent people in court. At old common law the Inns were left to regulate this matter, in the colony the royal governor administrations or the courts themselves had to approve you. Women were not to represent others because that was considered technically a public office and women were barred from holding public office. After the revolution states had statutes, constitutional provisions or state supreme court regulations that controlled who could be admitted to argue cases in front of courts. Many of these said explicitly that only males of a certain age (and who obtained a certificate of good moral character from their county court) could appear in court representing others, many said 'persons' or 'citizens' of a certain age. In many of the states with the latter language courts still denied women who tried to be admitted to argue in front of them, arguing that since the Common Law didn't recognize women attorneys before the courts, the language of 'persons' and 'citizens' didn't apply to them, others argued that the women's loss of their own legal privileges under coverture indicated they could not represent others. If you recall the famous Bradwell case, there, in 1869, the Illinois Supreme Court said women were not included under the statutory language of 'persons' of a certain age who had been approved by at least two Justices of the state Supreme Court. So, yes, women were quite barred from representing others not just by social mores of the day but by law.

"Where did the government law of the day limit the freedom of women, free blacks or homosexuals from exercising the performing the above acts of life to any greater degree than white men?"

Under sodomy laws of the time gay persons who acted on their orientation were subject to imprisonment (and worse). You can't run businesses, build houses, and the other things on your list in prison. What sweet liberty there was then!

Free blacks faced all kinds of restrictions (including political, like being denied the franchise, civil, like being denied jury representation, and economic, like not having their contracts equally enforced and having to comply with segregation restrictions) depending on what state they lived in. Do you really need a lesson in this area? Smell the liberty!

As for women, you yourself have noted that at the time they lost even the most basic economic rights if they married, since there were also common law prohibitions on cohabitation, fornication, etc., that meant that women were faced with the choice of living alone as spinsters or losing most basic fundamental rights (and we're not talking about 'I can start a business but I have to do paperwork and pay licensing fees and follow labor regulations deprivations, we're talking about 'can't make or enforce contracts at all or own property' kind of deprivations).

You're living in a myopic fantasy world.

And I notice you didn't even try to address the incredibly invasive restrictions on liberty embodied in obscenity, adultery, fornication, sodomy, contraception, etc., related laws of that time, the criminal and political libel laws of the time, the established churches of the time, the Slave Code provisions of the time, the Blue Laws of the time, etc., etc.

Mr. W: "What it does is demonstrate the absurdity of a person calling themselves a 'libertarian' saying that a society with actual, honest to goodness institutionalized slavery of 15% of the population is one that is 'largely' free and better than the one we have now."

Which was a freer political economy - Athenian democracy with slavery or Mandarin China where an unelected bureaucracy directed almost every aspect of the economic and social lives of its citizenry?

I will grant you that our current government permits far more obscenity, adultery, fornication and sodomy than did the colonies. Are you seriously arguing that modern licentiousness somehow offsets our relative lack of freedom in every other aspect of how we live our lives?

A thread on that case I referenced with Orin Kerr taking part. It also includes a link to student Kagan's thesis on the exclusionary rule back in 1983. Kerr is an expert on 4A law, so him being very impressed by it is itself impressive.

A sit-in on the House of Representatives floor was set-up today to push for at least a vote on the gun issue (as there have been in the Senate; one compromise version isn't dead yet). There are various things on the table there. John Oliver, e.g., cited funding research. As this person who supports gun rights (e.g., thinks the felony ban is too broad) notes, this seems like a gratuitous thing:

There is also expansion of background checks which as Oliver et. al. note a supermajority of the population (including gun owners) support, but the strong opposition of a powerful minority (a basic bottleneck point strategy) leads it not to pass.

And, there are various versions of the watch list matter, including a limited one with accelerated judicial review & payment of attorney fees.

"Are you seriously arguing that modern licentiousness somehow offsets our relative lack of freedom in every other aspect of how we live our lives?"

1. This was one of many other liberty restricting aspects of the time that I enumerated. Nice try though.

2. What you call 'modern licentiousness' is what other people call 'sexual liberty,' and to a lot of people who you have sex with, live with, and have children with are pretty important parts of their lives. I understand perhaps it might be marginal for you. Also, the obscenity part involves what people read or watch, which is also kind of important to some.

"Mandarin China where an unelected bureaucracy directed almost every aspect of the economic and social lives of its citizenry?"

But this is just part of your hyperbolic fantasies to compare our nation to . I recently had a relative that wanted to move from one part of town to another. They just did it, no bureaucracy stopped it. She changed her job around the same time. No bureaucracy stopped it. She got online around the same time and via online dating found someone she's still dating. No bureaucracy stopped it. Far from the direction of 'almost every aspect of the economic and social lives,' most of what people want to do every day in our nation is up to them.

If Bart lived in colonial America he'd be in jail right now for sedition. He uses the hyperbolic language of 'tyrant' about people like Obama, but he'd find out the difference between reality and hyperbole quick if existed then, colonial governors, and the Crown they represented, didn't play around.

Mr. W: What you call 'modern licentiousness' is what other people call 'sexual liberty,' and to a lot of people who you have sex with, live with, and have children with are pretty important parts of their lives.

So long as people do not harm one another, they should live their lives as they please. However, cheating on your spouse, watching porn and sodomizing someone are hardly important could easily be considered poor uses of our liberty.

BD: Which was a freer political economy - Athenian democracy with slavery or Mandarin China where an unelected bureaucracy directed almost every aspect of the economic and social lives of its citizenry?

But this is just part of your hyperbolic fantasies to compare our nation to.

You offered the argument that a political economy where 85% live free and 15% are enslaved cannot be considered "largely free" or freer than a political economy where a bureaucratic state directs nearly every aspect of our economic life and and much of our social life (outside of the bedroom).

While not perfect, the analogy with Athens and Mandarin China is a pretty good one.

The question basically boils down to: Which is the freer country - the one where 85% are free and 15% are enslaved or the one where the entire citizenry apart from a privileged political class is partly free?

Now answer the question honestly.

I recently had a relative that wanted to move from one part of town to another. They just did it, no bureaucracy stopped it.

Your relative moved to a home built to government specification, by a builders who can only legally work if the government grants them a license, at a location where the government decreed that home may be built.

Your relative needed a license to drive her personal and commercial vehicles and/or she had to hire a government regulated commercial moving company to transport her property to the home.

The government likely forbids your relative from operating a business or conducting a myriad of non-residential activities at the new home.

If your relative does not manage her yard and plants to government specifications, the government will come to her home to cut the yard and plants and then charge your relative for that "service" and, in some locations, will fine or even criminally prosecute her.

She changed her job around the same time. No bureaucracy stopped it.

Is your relative a professional or one of the increasing number of semi-skilled vocations in which you can only work with a government license and will often be criminally prosecuted for working without a license?

Your relative almost certainly works for a business directed in a myriad of ways by the government which indirectly affects the availability of her position, her compensation and what she is permitted to do on the job.

She got online around the same time and via online dating found someone she's still dating.

The internet is one of the few remaining relatively free parts of our economy. Don't worry, though, our government is working on controlling that as well.

Once you actually start to pay attention, it is difficult to identify almost any area of your life which our modern government does not direct to some degree.

If Bart lived in colonial America he'd be in jail right now for sedition.

I would be one of the Revolutionaries. You would be a Tory diligently excusing the Crown's various abuses of power and calling the result freedom.

"However, cheating on your spouse, watching porn and sodomizing someone are hardly important could easily be considered poor uses of our liberty."

Bart, you left out 'fornication' which was just sex outside marriage, and yes, that's a pretty important use of liberty for most people (one of the most important in many's life I'd say). Sodomizing includes any non-genital to genital sex, also encompassing stuff that many people spend a fair amount of time and effort seeking. And your dismissal of 'watching porn' is amusing, obscenity laws were used to try to bar works like D.H. Lawrence's Lady Chatterly's Lover, James Joyce's Ulyssess and even comic books like Felix the Cat.

"Which is the freer country - the one where 85% are free and 15% are enslaved or the one where the entire citizenry apart from a privileged political class is partly free?"

The answer is easily the latter, because all nations are going to be 'partly free' in the way you describe, no polity can have people do whatever they want whenever. Actual slavery is uniquely awful, people are derived of all autonomy and their existence is owned by another at every level, subject to the worst abuses. The kind of restrictions you lament are very peripheral to most people's concept of their autonomy. It doesn't pain people much that when they drive they have to have a license and obey traffic laws as long as they are largely free to drive where they will when they will; it doesn't pain people much that if they want to get married that they have to get a marriage certificate, as long as they can choose their mate; it doesn't pain people much to have to choose a house that was built according to code, as long as they can make the ultimate choice to buy the available house they want. These are seriously marginal impingements on liberty, 99% of the population 'suffering' from them would not outweigh 1% in actual slavery.

"it is difficult to identify almost any area of your life which our modern government does not direct to some degree."

Here is where even you feel the need to insert a weasel word that betrays the weakness of your position: modern government does a lot, some of it is indeed too much I'd say, but as I've described above, it's largely fairly indirect leaving the bulk of what's important about personal autonomy up to the individual.

"I would be one of the Revolutionaries. You would be a Tory diligently excusing the Crown's various abuses of power and calling the result freedom."

The roles would likely be reversed. You have little value for the main thing the Revolutionaries fought for, that is democratic representation. As you yourself have argued here, the colonies pre-Revolution had relatively 'small' governments by your standards (low taxes, few regulatory agencies and regulations, largely obstructed governments). It's me that valued what our Founders did when they struck their blow for democratic government. But, my point stands: you ridiculously argue that we were more free in pre-Revolution colonial days than today, yet in the former you'd be rotting in a jail for writing the kinds of things that you freely write about our government and leaders today. Your life is the best example of how wrong your argument is!

Also, you say pre-Revolution America was more free than you are today, but then you say you'd be a revolutionary then while you're not one now. That too demonstrates that you don't really believe your own crap you're peddling there.

"including a limited one with accelerated judicial review & payment of attorney fees."

Joe, I've been thinking in response to your posts on the matter, what would I offer to address the issue of suspected terrorists and guns. I don't think the 2nd Amendment right can be dealt with in exactly the same way as, say, the 1st Amendment, but I do think that, the right being established in Heller and MacDonald, it is now a right that must be respected. People don't lose their 1st Amendment rights because they're only suspected of terrorism, I wouldn't want them to lose their 2nd Amendment ones either (similarly, I don't think felons who've finished their sentences should be barred from owning a gun). Having said that, I'd support this: if someone is on the kind of suspect list talked about in this case, if they buy a gun it should be automatically reported to the authorities who put them on the list. That way they can take notice and decide to watch the suspect more closely or even visit them to alert them that they will be doing so.

I think they make a good case. I'm not quite sure what the right to buy entails but the "bill of attainder" label of "terrorist" is problematic. For instance, someone on Twitter played a video talking about (dark music) people on terrorist websites. What websites shouldn't I go to?

So, you know, right. IF we are going to have it -- and we already do in part when we are dealing with no fly lists -- I'd hope there were as many due process protections possible including an easy way to go to court to get one's name off it. I realize this is tempering wrong, but darn, how many issues (abortion, voting rights, travel, etc.) are there compromises to an ideal situation? So, you know, yes, I'm going to talk degrees too.

Finally, it's important to remember the Democrats (and a few Republicans) aren't just talking about terrorist watch lists. Sen. Toomey (R-PA) after all co-sponsored the blocked background check law. And, there is the research funding bill. Me personally, I actually find other stuff more appealing. When the NRA and ACLU oppose something, it's a red flag.

That childish display on the Senate floor? It wasn't over using the list to block gun purchases, enough Republicans had already rolled over to permit that.

It was over the Republicans' demand that the list get some basic procedural safeguards. That protest was, literally, an ANTI civil rights protest. Fighting to make sure the government wouldn't have to go to a court to put you on the list, and that you couldn't go to court to be removed.

And, yes, if you're taking a position that both the ACLU AND the NRA find offensive, you're almost certainly in the wrong.

BD: "Which is the freer country - the one where 85% are free and 15% are enslaved or the one where the entire citizenry apart from a privileged political class is partly free?"

The answer is easily the latter, because all nations are going to be 'partly free' in the way you describe, no polity can have people do whatever they want whenever.

Again with the false analogy to anarchy.

A free people can do whatever they want whenever they want so long as they do not harm others.

Our political economy became progressively freer after ratifying the Constitution and came closer than any other nation in history to accomplishing this ideal for a supermajority of our people by the 1920s, when women gained the franchise nationally and before Hoover and FDR entrenched progressivism. If we had enforced the Civil War amendments and eliminated Democrat government racism, America would have been essentially free.

The "childish display on the Senate floor" was over having a votes on various measures and talk about gun issues generally. A major part of the American public agree with them, they were voted to represent their interests, and they seriously discussed the issues from a range of perspectives, including multiple ones who support gun rights generally.

This included the background check sponsored by probably the most conservative Democrat in the Senate & a Republican (both having high ratings from the NRA, which I recently learned from Brett is really is a weak-willed group), which was filibustered even though there is broad support, even among gun owners. Democracy in action. One can be passionate and representative and wrong, but happily some of the stuff talked about is perfectly fine.

The list HAS "some basic procedural safeguards" and Republicans inconsistently care about them as noted. This doesn't mean they have enough but the reality based community have nuance. Same with Trump-curious people who promote someone a person who cares consistently about liberty (including issues that if 'the Left' had some of his positions would be worthy of disgust, not spin of criticism) wouldn't touch with a ten foot pole.

When liberals, conservatives and libertarians find someone so bad they think he is extra level horrible, yes, it's a red flag. Anyway, I said I support a consistent concern for liberty here but trying to see the whole picture since in the real world utopia doesn't exist.

"Our political economy became progressively freer after ratifying the Constitution and came closer than any other nation in history to accomplishing this ideal for a supermajority of our people by the 1920s"

Sorry, still wrong. Gays were still subject to imprisonment for simply acting on their orientation; under the Comstock laws and obscenity statutes criminalized everything from contraception to just pamphlets about contraception were crimes, as well as books like James Joyce's Ulysses; basic sexual liberties were subject to state action; under the Blue Laws virtually all economic transactions were forbidden one day a week; most of the South was under an incredibly oppressive Jim Crow system which impinged upon even the most basic economic rights of everyone (many white businesses were forbidden to serve blacks either at all or only under mandated ways) as well as the fundamental political and civil rights of blacks and this included a system that included institutionalized extra-legal violent terror (several hundred lynchings occurred in the 1920s); there was no incorporation of the BoR to the states and the result was widespread criminalization of political speech (Bart would likely be in jail under the many criminal libel, criminal sedition or criminal syndicalism laws around the country), searches that would be considered unreasonable today were regularly occurring, big cities passed gun control legislation (like the Sullivan acts in NY) that would make a DC councilperson applaud, etc., etc. So, wrong again.

I frankly don't get the objection to background checks. Do those that oppose them think the underage or mentally ill should be able to buy guns? If they don't, how, other than background checks, is that going to be prevented? I think there should be universal background checks (though I think the categories of people that should be disqualified by them should be much narrower than most proponents of the practice, and that there should be something to address the problem of incorrect data).

The general point was that sound gun regulation was a faithful application of the 2A and included this intriguing comment:

"The Founders were also aware of a variety of common-law restrictions on keeping and bearing arms. Under common law, any person in the community could approach a justice of the peace and demand that an individual be preemptively disarmed if they posed a danger to public safety. Such persons would be required to post a peace bond, much like a modern bail bond."

I emailed him for further information and he cited his book (it was good but not sure if it covered this ground) and this article:

It's an interesting article on colonial practice which is for me "fwiw" but for originalism view might be of some interest. The general conclusion seems to be that there was a broad limit on carrying around arms in public places -- there was a strong right to have them at home & during militia duty but otherwise in public places there was a strict license regime. Again, what this tells us about today is unclear.

One section talks about:"One means of conserving the peace, apart from prosecuting those who breached it, was to order persons who posed particular risks to provide sureties of the peace." This is obtained either by a complaint (under oath) or perhaps a more general finding on "probable ground." It was separate from prosecution. It sounds like a sort of bail and includes a sort of specific judicial oversight, including obligation to "to bind the party to appear at the next sessions of the peace." The justices of the peace had broad powers here -- it sounds like a fruitful area of research.

Again, what this tells us about the current day (as the op-ed notes, we have stronger views of due process) is unclear, but it is intriguing.

Polling broad concepts like "universal background checks" intentionally without any context is only meant to generate propaganda.

The actual proposals range from the unenforceable to the grossly unconstitutional.

As we have learned here in Colorado, government has no effective way to compel private citizens to conduct federal database background checks before they sell or give their firearms to members of their families or neighbors, and the true black market sellers (where the Paris ISIS attackers obtained their fully automatic AK-47s) do not give a damn about these laws.

Heller already held that semi-automatic weapons are protected by the second Amendment. There is no functional difference between so called "assault weapons" with military styling and any other semi-auto firearm that would justify a ban on the former which would pass legitimate intermediate or strict scrutiny.

Finally, the Democrat legislation allowing the bureaucracy to strip Americans' Second Amendment rights without any evidence or effective recourse is a direct assault on the Fifth Amendment.

joe-what do you think of the common law exceptions existing at the Founding for, say, the First Amendment (i.e., the obscenity exception) or the Fourth Amendment (i.e., allowing for the shooting of any fleeing felon)? I don't think much of them, and I imagine those who feel strongly about those that existed for the 2nd do not care much for them either.

Joe: The general point was that sound gun regulation was a faithful application of the 2A and included this intriguing comment: "The Founders were also aware of a variety of common-law restrictions on keeping and bearing arms. Under common law, any person in the community could approach a justice of the peace and demand that an individual be preemptively disarmed if they posed a danger to public safety. Such persons would be required to post a peace bond, much like a modern bail bond."

There is a movement to apply the concept of a civil restraining order to temporarily restrain violent or mentally ill people from possessing firearms.

The idea is that a third party petitioner can make an ex parte complaint to a court alleging evidence that a person is violent and/or mentally ill, presents a danger to others and should be restrained from possessing firearms. If the allegations are sufficient, the court issues a temporary restraining order to the police to disarm the person and sets a evidentiary hearing to determine if the order should be made "permanent." At that hearing, the petitioner bears the burden of demonstrating that the respondent presents a danger to others and the respondent can defend himself or herself. If the court makes the order "permanent," the respondent can seek to vacate the order after a period of time by demonstrating that the danger no longer exists.

So long as there are sufficient safeguards, this idea has some definite merit.

"government has no effective way to compel private citizens to conduct federal database background checks before they sell or give their firearms to members of their families or neighbors"

No law is going to be 'effective' in the sense of 100% compliance, the best you can hope for is that they push some people who would act otherwise to act in compliance with it. Making it a felony to transfer a firearm without a background check and/or making any transferee that forgoes one liable for any harm later done by the recipient of the firearm would do that.

"There is no functional difference between so called "assault weapons" with military styling and any other semi-auto firearm that would justify a ban on the former "

If they're functionally the same then there's no harm in banning the former as long as the latter are available, right?

Neither SPAM I AM! nor Brett took the bait of this earlier comment of mine:

***When I was born (1930), Herbert Hoover, a Republican, was President. But I was not aware of him until some years later. I learned of his campaign slogan "A Chicken in Every Pot and a Car in Every Garage." SPAM I AM! claims the Republican Hoover was a progressive. Of course, the Roaring 20s left by Harding and Coolidge, both Republican conservatives, did not perform for this slogan what with the Great Depression that started in the first year of Hoover's term.

Jumping ahead to today's income/asset inequality, what about the 2nd A inequality? Perhaps Hoovers's slogan might be expanded to include "and an assault rifle in every home." SPAM I AM! and Brett regard the 2nd A as absolute and as permitting for armed revolution against what they perceive as tyrannical government. By addressing this 2nd A inequality, we could have people who object to the armed revolution views of SPAM I AM, Brett and their ilk, be well armed to counter such armed revolution. SPAM I AM!, Brett and their ilk don't like leveling playing fields to address discrimination of the "others," so I doubt they would want to level the 2nd A playing field.# posted by Shag from Brookline : 11:04 AM

***

I guess they would not want to address 2nd A inequality, as they might feel threatened/intimidated by arming of the "others."

BD: "government has no effective way to compel private citizens to conduct federal database background checks before they sell or give their firearms to members of their families or neighbors"

Mr W: No law is going to be 'effective' in the sense of 100% compliance, the best you can hope for is that they push some people who would act otherwise to act in compliance with it.

Try zero compliance. The only way this law would ever be enforced is after the fact when law enforcement finds that some criminal obtained a firearm used in a crime from some poor schlub who did not conduct a background check before transferring the firearm.

BD: "There is no functional difference between so called "assault weapons" with military styling and any other semi-auto firearm that would justify a ban on the former "

If they're functionally the same then there's no harm in banning the former as long as the latter are available, right?

Your totalitarian side is showing again.

That is like arguing that the government can censor Balkinization here at Blogger because the government deigned not to censor Wordpress.

Blood tests -- warrants; breath tests -- no. Texas affirmative action program upheld. Deadlocked over Native American case with sensitive facts and the immigration matter (surprised; thought they would punt via standing). A statutory criminal case had a bunch of opinions including a tour de force dissent by Justice Alito

joe-what do you think of the common law exceptions existing at the Founding for, say, the First Amendment (i.e., the obscenity exception) or the Fourth Amendment (i.e., allowing for the shooting of any fleeing felon)? I don't think much of them, and I imagine those who feel strongly about those that existed for the 2nd do not care much for them either.

I don't put too much credence to them but D.C. v. Heller did regarding guns so you have commentary and lower court judges (including a recent case on concealed carry) referencing such things. The basic rule to me seems to be that history is informative but rebuttable. So, if you support a position and history helps you, pays to reference it.

Apparently SPAM I AM! is taking time off from what may be his full-time endeavor as troll at this Blog by multi-tasking with what he claims to be " ... preparing for multiple trials." which can connote various things Presumably in his typically narcissistic manner he may wish to convey that he is an excellent trial attorney handling major cases. But it could be more like a dermatologist handling multiple benign zits. [Recall the Seinfeld episodes on a dermatologist he was dating.] But anyway, congrats for what may be paying multi-legal gigs. Assuming that SPAM I AM!'s multiple trials are major cases, those of us used to SPAM I AM!'s mishistories at this Blog and gleefully point our his errors/exaggerations/lies may have a long wait as he will be required to focus on his clients' interests, and that could be difficult for a narcissist.

SPAM I AM! nibbled at the bait I put our a second time. But he's busy " ... preparing for multiple trials." So he closes with:

"Go back to the older threads and relive my corrections of your historical errors there."

SPAM I AM! either has a poor memory, in which case his "major cases" clients may be in trouble, or this may be more of his fabrications, a sign of narcissism. For SPAM I AM! conceded there is no specific provision in the Constitution as amended that the 2nd A supports armed revolution. SPAM I AM! went on to sort of claim this as a natural right. So the bait I put out was providing for 2nd A equality, expanding Hoover's 1928 slogan, with an assault rifle in every home, so that people who think armed revolutionaries against the central government claiming tyranny are cuckoo can be armed to counter them, perhaps at the level of a natural right. That's basically a new subject. But major cases are especially major for an attorney who claims to be a criminal lawyer specializing in DUI cases defending alleged drunks. (Might multi-alledged drunks be involved?)

Maybe Brett will fill the vacuum (something, it is said, nature abhors).

By the Bybee [expletives deleted], is Justice Alito now the Court's narcissist? One could feel Mt Etna spouting with his dissent in Fisher as Justice Kennedy cut bait.

The EU was always a devil's bargain - membership in a free trade zone in exchange for ceding your sovereignty to a Brussels bureaucracy trying to make Europe like France and mass immigration of cheap foreign workers for EU businesses.

The UK will not be the last to leave the EU. I wonder if a rather pissed off German citizenry which has been paying additional taxes and absorbing millions of non-Germans will be the next to rebel against their establishment and try to leave.

The UK vote broke along rather American demographic lines - the capital, the credentialed caste, immigrants and EU transfer payment dependents like the Scots/Northern Irish voted to remain, the rest of the country voted to leave. It will be interesting to see if our November election follows the same lines for Democrats and Republicans.

Scotland's reactions to Brexit and to the "timely" visit of the presumptuous Republican nominee on personal business in Scotland might be to take a mulligan on its earlier failed referendum effort to exit the United Kingdom. That would be taking the high road. And even the UK's "Gibraltar may tumble ... " (H/T to the late Cole Porter) making the Mediterranean a YUGE lake.

It seems the "multiple trials" are over and SPAM I AM! provides tribulations of caste. But I thought the Brits no longer had a caste system, although it still has royalty. In any event, the second sentence calls for clarification.

Those patiently awaiting an explanation of the caste system in Britain might be interested in reading the review byDwight Garner in the NYTimes of Nancy Isenberg's "White Trash - The 400-year Untold History of Class in America."

By the Bybee [expletives deleted], the review might serve as a guide for challenging claims about liberties being greater in the old days - but for whom? Add the white trash to slaves, women, Native Americans, Jim Crow, etc, for whom the good old days were not great?